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119 U. S. 1, 28, 30 L. ed. 306, 315, 7 Sup. Ct. I they owe care and protection.” Choctaw NaRep. 75. In the early dealings of the govern- tion v. United States, 119 U. S. 1, 28, 30 L. ment with the Indian tribes the latter were ed. 306, 315, 7 Sup. Ct. Rep. 75. But none recognized as possessing some of the at- of the decisions affirming the protection of tributes of nations, with which the former the Indians questioned the full power of the made treaties, and the policy of the govern-government to legislate in respect to them. ment was, sometimes by treaties and some- Of late years a new policy has found extimes by the use of force, to put a stop to pression in the legislation of Congress,-a the wanderings of these tribes and locate policy which looks to the breaking up of them on some definite territory or reserva-tribal relations, the establishing of the sepation, there establishing for them a com- rate Indians in individual homes, free from munal or tribal life. While this policy was national guardianship and charged with all in force, and this location of wandering the rights and obligations of citizens of the tribes was being accomplished, much of the United States. Of the power of the governlegislation of Congress ran in the direction ment to carry out this policy there can be of the isolation of the Indians, preventing no doubt. It is under no constitutional obgeneral intercourse between them and their ligation to perpetually continue the relationwhite neighbors in order that they might not ship of guardian and ward. It may at any be defrauded or wronged through the supe time abandon its guardianship and leave the rior cunning and skill of those neighbors. ward to assume and be subject to all the The practice of dealing with the Indian privileges and burdens of one sui juris. And tribes as separate nations was changed by a it is for Congress to determine when and proviso inserted in the Indian appropriation how that relationship of guardianship shall act of March 3, 1871 (16 Stat. at L. 566, be abandoned. It is not within the power of chap. 120, carried into § 2079 Rev. Stat.), the courts to overrule the judgment of Conwhich reads: "No Indian nation or tribe gress. It is true there may be a presumption within the territory of the United States that no radical departure is intended, and shall be acknowledged or recognized as an in-courts may wisely insist that the purpose of dependent nation, tribe, or power with whom Congress be made clear by its legislation; the United States may contract by treaty.” but when that purpose is made clear the From that time on the Indian tribes and the question is at an end. individual members thereof have been sub- It may be well to notice some of the jected to the direct legislation of Congress legislation of Congress having this end in which, for some time thereafter, continued view. Section 15 of the act of March 3, the policy of locating the tribes on separate 1893 (27 Stat. at L. 612, 645, chap. 209), reservations and perpetuating the communal reads: or tribal life.
“The consent of the United States is hereWhile, during these years, the exercise of by given to the allotment of lands in sevcertain powers by the Indian tribes was receralty, not exceeding one hundred and sixty ognized, yet their subjection to the full con- acres, to any one individual within the
, trol of the United States was often affirmed. limits of the country occupied by the In Lone Wolf v. Hitchcock, 187 U. S. 553, Cherokees, Creeks, Choctaws, Chickasaws, 565, 47 L. ed. 299, 306, 23 Sup. Ct. Rep. 216, and Seminoles; and upon such allotments it was said: "Plenary authority over the the individuals to whom the same may be tribal relations of the Indians has been exer- allotted shall be deemed to be in all recised by Congress from the beginning, and spects citizens of the United States. And the power has always been deemed a political | the sum of twenty-five thousand dollars, or one, not subject to be controlled by the judi- so much thereof as may be necessary, is cial department of the government.” And hereby appropriated to pay for the survey the conclusion thus reached was supported of any such lands as may be allotted by any by the authority of several cases. It is true of said tribes of Indians to individual memwe ruled, when treaties between the Indian bers of said tribes; and upon the allotment tribes and the United States were the subject of the lands held by said tribes respectively, of consideration, that "how the words of the the reversionary interest of the United treaty were understood by this unlettered States therein shall be relinquished and shall people, rather than their critical meaning, cease." should form the rule of construction.” Wor- Section 16 created what is known as the cester v. Georgia, 6 Pet. 515, 582, 8 L. ed. Dawes Commission, for extinguishing the 483, 508. And we also said that the obliga-national or tribal title to lands within the tions which the United States were under to Indian territory. Pursuant to its authorthe Indians called for "such an interpreta-ity, an agreement was made with the Choction of their acts and promises as justice and taw and Chickasaw Nations for the allotreason demand in all cases where power is ment of their lands among the members, exerted by the strong over those to whom which agreement was ratified and approved
by the act of Congress of June 28, 1898. 30 district of Kansas, in the years following Stat. at L. 495, chap. 517. In that agree these treaties, to see Indians coming into ment it was stipulated (p. 513): "It is the district court and taking the oath of further agreed that the Choctaws and Chick- allegiance, as required by these provisions. asaws, when their tribal governments cease, We make these references to recent treaties, shall become possessed of all the rights and not with a view of determining the rights privileges of citizens of the United States.” created thereby, but simply as illustrative By the same act an agreement made with of the proposition that the policy of the the Creek Indians, which contained a simi- government has changed, and that an effort lar stipulation, was ratified and approved. is being made to relieve some of the In. In the last treaty with the Kickapoos, to dians from their tutelage and endow them which tribe John Butler, the person to with the full rights of citizenship, thus whom the petitioner is charged to have sold terminating between them and the governthe liquor, belonged, a treaty concluded June ment the relation of guardian and ward, 28, 1862 (Revision of Indian Treaties, art. and that the statute we are considering is 8, p. 449), it was provided:
not altogether novel in the history of con"Art. 3. At any time hereafter, when the gressional legislation. President of the United States shall have Now the act of 1887 was passed twentybecome satisfied that any adults, being five years after the treaty of 1862 with males and heads of families, who may be the Kickapoos, and must be construed in allottees under the provision of the fore the light of that treaty. By the treaty it going article, are sufficiently intelligent and was declared that at the instance of the prudent to control their affairs and inter- President, and upon compliance with speci. ests, he may, at the requests of such per-fied provisions, certain of the Indians sons, cause the land severally held by them should be considered as competent persons, to be conveyed to them by patent in fee should cease to be members of the tribe simple, with power of alienation; and may, and become citizens of the United States. at the saine time, cause to be
[set The act of 1887, in like manner, provides. apart and placed to their credit severally), that, at the instance of the President, a their proportion of the cash value of the reservation may be surveyed and individual credits of the tribe, principal and interest, tracts allotted to the Indians, and that then held in trust by the United States, and upon approval of the allotments by the Secalso, as the same may be received, their retary of the Interior patents shall issue, proportion of the proceeds of the sale of subject to a condition against alienation and lands under the provisions of this treaty. encumbrances during a period of twenty-five And on such patents being issued, and such years, or longer, if the President deems it payments ordered to be made by the Presi. wise. Section 6 then declares that the "In. dent, such competent persons shall cease to dians to whom allotments have been made be members of said tribe, and shall become shall have the benefit of, and be subject to, citizens of the United States; and there the laws, both civil and criminal, of the after the lands so patented to them shall state or territory in which they may reside, be subject to levy, taxation, and sale, in and no territory shall pass or enforce any like manner with the property of other citi- law denying any such Indian within its juzens: Provided, That before making any risdiction the equal protection of the law.” such application to the President, they shall It is urged that this clause becomes opappear in open court, in the district court erative only when the final patent provided of the United States for the district of for by § 5 is issued; but there are many Kansas, and make the same proof and take reasons why such contention is unsound. the same oath of allegiance as is provided by In the first place, it is hardly to be suplaw for the naturalization of aliens; and posed that Congress would legislate twentyshall also make proof, to the satisfaction of five years in advance in respect to the gensaid court, that they are sufficiently intelli- eral status of these Indians. If they were gent and prudent to control their affairs to continue in the same relation to the govand interests; that they have adopted the ernment that they hitherto occupied, it habits of civilized life, and have been able would seem as though Congress would have to support, for at least five years, them- said nothing and waited until near the ex. selves and families.” [13 Stat. at L. 624.] piration of twenty-five years before deter
A similar clause is found in the treaty of mining what should be such status. Second, April 19, 1862 [12 Stat. at L. 1191], be- the language of the first sentence of $ 6. tween the United States and the Pottawa-forbids the construction contended for. It tomie Indians. Revision of Indian Treaties, is "that upon the completion of said allot683, 685. It was not uncommon in the dis- ments and the patenting of the lands to trict court of the United States for the said allottees.” Now the allotting and the
patenting are joined together as though oc- "Were it not for the fact that every court curring at or near the same time. Fur- that has considered this language at all has ther, when the first patent is issued the re- assumed it to mean that an Indian becomes cipient ceases to be an allottee, and becomes entitled to the benefit of, and subject to, the a patentee. Again, the second patent does laws of the state in which he resides upon not always go to the holder of the first pat- the receipt of his first patent, the natural ent, because, as provided by § 5, it may go inference would be that Congress intended to the first patentee or his heirs. And those consequences to attach only when the finally, the last sentence indicates that the allotments referred to had been fully comwhole section deals with present conditions pleted and the final patent issued. But, and present rights. It reads: “And every in spite of the array of cases upon this subIndian born within the territorial limits ject, it will be found, upon examination, of the United States, to whom allotments that in none of them was the provision reshall have been made under the provisions ferred to carefully analyzed and discussed, of this act,
is hereby declared to and that from first to last it has been merebe a citizen of the United States, and is ly a matter of assumption. entitled to all the rights, privileges, and "Upon the subject of citizenship, § 6 proimmunities of such citizens,
with-vides that 'every Indian born within the out in any manner impairing or otherwise territorial limits of the United States, to affecting the right of any such Indian to whom allotments shall have been made untribal or other property.” This confers citi- der the provisions of this act, or under any zenship upon the allottee, and not upon the law or treaty,
is hereby declared patentee, while at the same time securing to be a citizen of the United States, and to him his right to tribal or other property. is entitled to all the rights, privileges, and So far as his political status is concerned, immunities of such citizens.' the allottee is declared to be a citizen,- "It would seem that Congress intended not that he will be a citizen after twenty- citizenship of the United States to attach five years have passed and a second patent at the same time that the Indian becomes shall have been issued.
That citizenship subject to the laws of the state or territory is limited to the allottees born within the in which he resides. As a matter of conterritorial limits of the United States was stitutional law, an Indian appears to be obviously intended to exclude from that entitled to the benefit of, and to be subject privilege such allottees, if any there should to, the laws of the state in which he rebe, who had recently come into this coun-sides the moment he becomes a citizen of try from the Dominion of Canada or else- the United States. By virtue of the 14th where.
Amendment a citizen of the United States This question has been presented to sev. becomes, by residence therein, a citizen of eral state and some Federal courts, and the the state, and entitled to all the rights, ruling universally has been to the same ef- privileges, and immunities of other citizens fect. State ex rel. T'ompton v. Denoyer, of the state, and to the equal protection of 6 N. Dak. 586, 72 N. W. 1014; State ex rel. its laws. Slaughter-House Cases, 16 Wall. Crawford v. Norris, 37 Neb. 299, 55 N. W. 36, 21 L. ed. 394.” 1086; Wa-La-Note-Tke-Tynin v. Carter, 6 We do not doubt that the construction Idaho, 85, 53 Pac. 106; Re Now-Ge-Zhuck placed by these several courts upon this sec(Kan.) 76 Pac. 877; United States v. Ricktion is correct, and that John Butler, at ert, 106 Fed. 5; Farrell v. United States, the time the defendant sold him the liquor, 49 C. C. A. 183, 110 Fed. 942, 947. In the was a citizen of the United States and first of these cases this declaration is made of the state of Kansas, having the bene“Such Indians and persons of Indian de- fit of, and being subject to the laws, both scent, so residing upon lands allotted to civil and criminal, of that state. Under them in severalty, and upon which the pre- these circumstances could the conviction of liminary patents have been issued, are citi- the petitioner in the Federal court of a zens of the United States, and qualified violation of the act of Congress of January electors of this state." See also Boyd v. Ne 30, 1897, be sustained ? In this Republic braska, 143 U. S. 135, 162, 36 L. ed. 103, there is a dual system of government, na109, 12 Sup. Ct. Rep. 375, 382, in which it tional and state. Each within its own dois said: “The act of Congress approved main is supreme, and one of the chief funcFebruary 8, 1887 (24 Stat. at L. 388, chap. tions of this court is to preserve the balance 119), was much broader, and by its terms between them, protecting each in the powmade every Indian situated as therein, re- ers it possesses, and preventing any tresferred to, a citizen of the United States.” pass thereon by the other. The general po
In reference to this matter the learned so- lice power is reserved to the states, sublicitor general makes these observations: ject, however, to the limitation that in its exercise the state may not trespass upon the the duties of citizens,' they enjoy the privrights and powers vested in the general gov- ilege of total immunity from state taxaernment. The regulation of the sale of in- tion.” toxicating liquors is one of the most com- If it be true that there can be no divided mon and significant exercises of the police authority over the property of the Indian. power. And so far as it is an exercise of a fortiori must it be true as to his political the police power it is within the domain of status and rights. state jurisdiction. It is true the national Subjection to both state and national law government exacts licenses as a condition in the same matter might often be imposof the sale of intoxicating liquors, but that sible. The power to punish a sale to an is solely for the purposes of revenue, and Indian implies an equal power to punish is no attempted exercise of the police power. a sale by an Indian. If by national law A license from the United States does not a sale to or by an Indian was punished give the licensee authority to sell liquor in solely by imprisonment and by state law a state whose laws forbid its sale, and solely by fine, how could both laws be enneither does a license from a state to sell forced in respect to the same sale? The liquor enable the licensee to sell without question is not whether a particular right paying the tax and obtaining the license re may be enforced in either a court of the quired by the Federal statute. License state or one of the nation, but whether two Cases, 5 How. 504, 12 L. ed. 256; McGuire sovereignties can create independent duties V. Massachusetts, 3 Wall. 387, 18 L. ed. and compel obedience. In United States v. 165; License Tax Cases, 5 Wall. 462, 18 L. Dewitt, 9 Wall. 41, 19 L. ed. 593, the quesed. 497. Now the act of 1897 is not a revotion was whether the 29th section of the enue statute, but plainly a police regulation. internal revenue act of March 2, 1867 (14 It will not be doubted that an act of Con- Stat. at L. 484, chap. 169), which estabgress attempting as a police regulation to lished a police regulation in respect to the punish the sale of liquor by one citizen mixing for sale, or the selling, of naphtha of a state to another within the territorial and illuminating oils, was enforceable withlimits of that state would be an invasion of in the limits of a state, and it was held that the state's jurisdiction, and could not be it was not, the court saying (p. 45, L. ed. sustained; and it would be immaterial what p. 594): the antecedent status of either buyer or “As a police regulation, relating excluseller was. There is in these police mat. sively to the internal trade of the states, ters no such thing as a divided sovereignty. it can only have effect where the legislative Jurisdiction is vested entirely in either the authority of Congress excludes, territorial. state or the nation, and not divided bely, all state legislation, as, for example, in tween the two.
the District of Columbia. Within state In Kansas Indians, 5 Wall. 737 (Blue limits it can have no constitutional operaJacket v. Johnson County), 18 L. ed. 667, tion.” the question was whether lands of Shawnee Re Now-Ge-Zhuck, 76 Pac. 877, decided Indians held in severalty were subject to by the supreme court of Kansas, referred state taxation, and it was held that they to an allottee under the act of February 8, were not, although in the last treaty with 1887, and in respect to the power of the the Shawnees, the one authorizing the allot- state to enforce its laws over such allottee ments, there was no express stipulation for that court said: exemption from taxation. The court said “An Indian upon whom has been con(p. 755, L. ed. p. 672):
ferred citizenship, and who enjoys the pro"If the tribal organization of the Shaw- tection of the laws of the state, should be nees is preserved intact, and recognized by punished for a transgression of them. This the political department of the government we are to presume Congress contemplated. as existing, then they are a ‘people distinct It being shown by the agreed facts that pefrom others,' capable of making treaties, titioner was an allottee to whom a patent separated from the jurisdiction of Kansas, had been issued, and further shown that the and to be governed exclusively by the gov- allotments had been made and completed as ernment of the Union. If under the con provided by the act of February 8, 1887, trol of Congress, from necessity there can the laws of the state were operative, and be no divided authority. If they have out the state had jurisdiction to arrest and lived many things, they have not outlived punish petitioner for the offense by him the protection afforded by the Constitution, committed.” treaties, and laws of Congress. It may be It is true the same act may often be that they cannot exist much longer as a a violation of both the state and Federal distinct people in the presence of the civ-law, but it is only when those laws occupy ilization of Kansas; but, until they are different planes. Thus, a sale of liquor clothed with the rights and bound to all' may be a violation of both the state and Federal law, in that it was made by one ical status of the allottees. In United States who had not paid the revenue tax and re- v. Rickert, 188 U. S. 432, 47 L. ed. 532, 23
v ceived from the United States a license to Sup. Ct. Rep. 478, we sustained the right sell, and also had not complied with the of the government to protect the lands thus state law in reference to the matter of state allotted and patented from any encumlicense. But in that case the two laws brance of state taxation. Undoubtedly an occupy different planes,--one that of rev- allottee can enforce his right to an inenue and the other that of police regulation. terest in the tribal or other property (for There is no suggestion in the present case that right is expressly granted); and of a violation of the internal revenue law equally clear is it that Congress may enforce of the nation, but the conviction is sought and protect any condition which it attaches to be upheld under the act of 1897, a mere to any of its grants. This it may do by statute of police regulation.
appropriate proceedings in either a national But it is contended that, although the or a state court. But the fact that propUnited States may not punish under the po- erty is held subject to a condition against lice power the sale of liquor within a state alienation does not affect the civil or poby one citizen to another, it has power to litical status of the holder of the title. punish such sale if the purchaser is an In- Many a tract of land is conveyed with condian. And the power to do this is traced ditions subsequent. A minor may not to that clause of § 8, art. 1, of the Con- alienate his lands; and the proper tribunal stitution which empowers Congress “to reg- may, at the instance of the rightful party, ulate commerce with foreign nations, and enforce all restraints upon alienation. among the several states, and with the In
But it is unnecessary to pursue this disdian tribes.” It is said that commerce with cussion further. We are of the opinion the Indian tribes includes commerce with that, when the United States grants the the members thereof, and Congress, having privileges of citizenship to an Indian, gives power to regulate commerce between the to him the benefit of, and requires him to white men and the Indians, continues to be subject to, the laws, both civil and crimretain that power, although it has provided inal, of the state, it places him outside the that the Indian shall have the benefit of reach of police regulations on the part of and be subject to the civil and criminal Congress; that the emancipation from Fedlaws of the state, and shall be a citizen oferal control, thus created, cannot be set the United States, and therefore a citizen aside at the instance of the government of the state. But the logic of this argu- without the consent of the individual Inment implies that the United States can dian and the state, and that this emancipanever release itself from the obligations of tion from Federal control is not affected by guardianship; that, so long as an individual the fact that the lands it has granted to the is an Indian by descent, Congress, although Indian are granted subject to a condition it may have granted all the rights and against alienation and encumbrance, or the privileges of national, and therefore state, further fact that it guarantees to him an citizenship, the benefits and burdens of the interest in tribal or other property. laws of the state, may at any time repu- The district Court of Kansas did not have diate this action and reassume its guard- jurisdiction of the offense charged, and ianship, and prevent the Indian from en- therefore the petitioner is entitled to his joying the benefit of the laws of the state, discharge from imprisonment. and release him from obligations of obedience thereto. Can it be that because one Mr. Justice Harlan dissented. has Indian, and only Indian, blood in his veins, he is to be forever one of a special class over whom the general government
(197 U. S. 482) may, in its discretion, assume the rights Ex parte: In re COMMONWEALTH OF of guardianship which it has once aban- MASSACHUSETTS, Petitioner. doned, and this whether the state or the indiridual himself consents? We think the Prohibition mandamus certiorari reach to which this argument goes demon- power of Supreme Court to grant where strates that it is unsound.
not possessing original or appellate jurisBut it is said that the government has
diction. provided that the Indian's title shall not be alienated or encumbered for twenty-five In cases over which the Supreme Court of the years, and has also stipulated that the
United States possesses neither original nor
appellate jurisdiction, it cannot grant prohi. grant of citizenship shall not deprive the
bition, mandamus, or certiorari as ancillary Indian of his interest in tribal or other
thereto. property; but these are mere property rights, and do not affect the civil or polit
[No. 15, Original.]